1974 (2) TMI 82 - SC - Indian Laws

Supreme Court voids externment order for procedural flaws, upholds fundamental rights

NAWABKHAN ABBASKHAN Versus THE STATE OF GUJARAT

The Supreme Court allowed the appeal, ruling that the externment order was void from the beginning due to procedural deficiencies and a breach of natural ... - Issues Involved:1. Discretion to disobey an order2. Validity of an externment order3. Retroactive effect of quashing an order4. Violation of natural justice5. Jurisdictional errors and their consequencesComprehensive, Issue-Wise Detailed Analysis:1. Discretion to Disobey an Order:The primary issue addressed in the judgment is whether a citizen has the discretion to disobey an order if it is subsequently quashed. The Court examined whether the accused could be held guilty for contravening an externment order that was later invalidated. The judgment concluded that an order remains valid until it is judicially set aside or declared void. The Court emphasized that allowing individuals to judge the legality of orders themselves could lead to anarchy and undermine the authority of administrative actions.2. Validity of an Externment Order:The externment order issued under Section 56 of the Bombay Police Act, 1951, was scrutinized. The Court noted that such orders must comply with the procedural safeguards outlined in Section 59, which mandates informing the person of the allegations and providing an opportunity to explain. The High Court quashed the externment order on the grounds that it was based on material not specified in the show cause notice and lacked the requisite opinion regarding witnesses' unwillingness to testify due to fear. The Supreme Court upheld this quashing, emphasizing that failure to comply with these procedural requirements rendered the order invalid.3. Retroactive Effect of Quashing an Order:A significant point of contention was whether the quashing of the externment order had a retroactive effect, rendering it void ab initio. The Court held that an unconstitutional order is void from its inception and cannot be considered valid at any point. Consequently, the accused could not be held guilty of violating an order that was never legally effective. The Court stated, 'An unconstitutional order is void, consequential administrative inconveniences being out of place where an administrator abandons constitutional discipline and limits of power.'4. Violation of Natural Justice:The Court extensively discussed the principle of natural justice, particularly the audi alteram partem rule, which requires that a person must be given a fair hearing before any adverse action is taken against them. The externment order was quashed primarily because it violated this principle by not providing the accused an opportunity to contest the allegations. The judgment emphasized that any order infringing fundamental rights without adhering to natural justice principles is a nullity.5. Jurisdictional Errors and Their Consequences:The judgment delved into the distinction between void and voidable orders, particularly in the context of jurisdictional errors. The Court observed that an order made without jurisdiction or in violation of statutory requirements is void and can be challenged directly or collaterally. The Court cited various precedents, including Ridge v. Baldwin, to illustrate that orders lacking jurisdictional validity are null from the outset. The Court concluded that the externment order, being issued without complying with mandatory procedural safeguards, was void ab initio.Conclusion:The Supreme Court allowed the appeal, holding that the externment order was void from its inception due to procedural lapses and violation of natural justice. Consequently, the accused could not be held guilty of contravening an order that was never legally effective. The judgment underscores the importance of adhering to constitutional and procedural safeguards in administrative actions affecting fundamental rights.